Justices press Obama administration lawyer Donald Verrilli about the right of Congress to force Americans to buy something

Protesters outside the supreme court. Anthony Kennedy said that allowing the government mandate would 'change the relationship' between the government and its citizens. Photograph: Benjamin J Myers/Corbis

Associated Press

Tuesday 27 March 2012 13.17 EDT
First published on Tuesday 27 March 2012 13.17 EDT

Questions put by conservative justices in the US supreme court have raised serious doubts about whether they will uphold a core provision of President Barack Obama's healthcare reforms.

In the second day of oral arguments on Tuesday, the justices pressed the Obama administration's lawyer about the right of Congress to force Americans to buy a product – in this case, healthcare.

"If the government can do that, what else can it do?" asked Justice Antonin Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act.

Scalia, as well as Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy, pressed the solicitor-general, Donald Verrilli, on whether people can be forced to buy things like cars and broccoli if the government can make them buy health insurance.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and its citizens.

"Do you not have a heavy burden of justification to show authority under the constitution" for the individual mandate? asked Kennedy, who is often the swing vote on cases that divide the justices along ideological lines.

Scalia repeatedly pointed out that the federal government's powers are limited by the constitution, with the rest left to the states and the people. "The argument there is that the people were left to decide whether to buy health insurance," Scalia said.

The Democrat-appointed liberal minority of four justices was expected to vote to uphold the Obama plan. But a ruling in favor of the law would require at least one of the five conservative, Republican-appointed judges to break ranks.

The healthcare overhaul, which squeaked through Congress when Democrats still controlled both houses, is constructed to expand the number of people who have insurance, including young and healthy people who may have fewer need for the system.

That is designed to offset losses to insurance companies, which would now be prevented from denying coverage to people who already have health problems so-called pre-existing conditions. The plan also expands Medicaid, the federal-state government program that insures low-income and disabled Americans, with most of the additional cost taken on by Washington.

At the close of the first of three days of hearings on Monday – the longest in decades – questioning by the nine justices had indicated they did not embrace the contention that a 19th century tax law would cause them to delay a decision on the reforms' constitutionality. The first day of arguments dealt with the 150-year-old law that says courts cannot decide tax questions until the taxes are levied.

The penalty for not acquiring health insurance does not become effective until 2014 and would be collected along with federal income taxes that become due in April 2015. Both sides of the healthcare issue want a decision in this court session and argued the law does not apply.

The administration contends that Congress has ample authority to impose the insurance mandate, arguing that health care costs consume 17% of the American economy and are susceptible to the federal regulation of national commerce. Opponents demand the law be struck down as an unprecedented extension of federal power over individual liberties. They say that not even decades of high court rulings that endorsed an expansive view of congressional authority can support the health care law.

All of Obama's top Republican challengers oppose the law as an assault on economic freedoms and, should they win, promise its repeal if the high court hasn't struck it down by then.

Polls have consistently shown the public is at best ambivalent about the benefits of the health care law, and that a majority of Americans believe the requirement to buy insurance is unconstitutional.